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District Court 19 August 2015

Massey v R

[2015] NSWDC 350

Fraud & dishonesty
CRIMINAL LAW APPEAL AGAINST SENTENCE FRAUD OFFENCES APPELLANT PARTNER IN BUSINESS NATURE AND CIRCUMSTANCES OF OFFENDING WHETHER REMORSE GENUINE

Citation: Massey v R [2015] NSWDC 350
Court: District Court of New South Wales
Date: 19 August 2015
Judge(s): Cogswell SC DCJ

Background

The appellant was a partner in a local retail business selling computer products, including Apple computers. When one of her two suppliers withdrew, she sought a replacement, but the new supplier required a signed director's guarantee as part of a credit application. Her business partner refused to sign, having received advice against assuming personal liability through such a guarantee.

Facing pressure from the approaching Christmas trading period and about to take leave to care for her husband ahead of serious surgery, the appellant forged her business partner's signature on the credit application and sent it by fax to the supplier. She acknowledged she knew her partner had not consented and that the company would require further documentation before approving the credit line of approximately $30,000.

She pleaded guilty in the Local Court to two charges: making a false instrument to obtain a financial advantage (s 253(b)(ii) of the Crimes Act 1900 (NSW)) and using a false document to obtain a financial advantage (s 254 of the same Act). Both offences carry a maximum penalty of ten years imprisonment. The Magistrate convicted her and imposed a 12-month good behaviour bond under s 9 of the Crimes (Sentencing Procedure) Act 1999. The appellant appealed, seeking a s 10 order with no conviction recorded.

  • Whether the appeal against sentence should be allowed under s 20(2) of the Crimes (Appeal and Review) Act 2001.
  • Whether the court should exercise its discretion under s 10 of the Crimes (Sentencing Procedure) Act 1999 to dismiss the charges without recording a conviction.
  • Whether the appellant's character, antecedents, and the extenuating circumstances of the offending warranted a s 10 order in place of the conviction recorded below.

Decision

Cogswell SC DCJ acknowledged the difficulty of the decision, noting genuine uncertainty about the appropriate outcome. The prosecution argued that the case did not warrant a non-conviction order, emphasising that the appellant had prioritised her own business judgment over her partner's clearly expressed refusal to sign, and that her remorse appeared less than genuine. His Honour accepted there was some force in the remorse point, while observing that the appellant had likely become more reflective about her conduct by the time of the appeal hearing.

Weighing the relevant factors under s 10, his Honour identified three considerations that tipped the balance in the appellant's favour. First, she had no prior criminal record at age 52. Second, two credible character referees who knew her well in both professional and personal contexts, and who had been told of the offending, consistently described it as an isolated lapse in judgment inconsistent with her general character. Third, while the personal stress she was under (her husband's deteriorating health and the pressures of the Christmas trading period) provided no excuse for the criminal conduct, those circumstances could be treated as extenuating factors relevant to the s 10 discretion.

His Honour also noted the significance of publishing the judgment. Because no conviction would be recorded, the usual community notification that flows from a criminal record would be absent. Publication of the reasons was considered an appropriate means of ensuring some public awareness of the nature of the conduct and the circumstances in which the order was made.

Orders Made

  • The appeal against sentence was allowed under s 20(2) of the Crimes (Appeal and Review) Act 2001.
  • The sentence imposed by the Magistrate was set aside.
  • Under s 10 of the Crimes (Sentencing Procedure) Act 1999, the appellant was found guilty of both offences without conviction being recorded.
  • A separate good behaviour bond of 12 months was made in respect of each offence, on conditions that the appellant be of good behaviour, notify the court registry of any change of address, and attend court if required by notice.

Key Takeaways

  • Under s 10 of the Crimes (Sentencing Procedure) Act 1999, a court may decline to record a conviction where the offender's character and antecedents, together with extenuating circumstances, collectively justify that outcome, even for offences carrying a maximum penalty of ten years imprisonment.
  • Personal stress and pressure, while not an excuse for criminal conduct, can constitute extenuating circumstances relevant to the exercise of the s 10 discretion.
  • An absence of prior criminality, combined with strong and informed character evidence from credible community members, weighed significantly in the appellant's favour, particularly where the referees had been told of the offending before giving their support.
  • Where a non-conviction order is made for conduct that would otherwise have been publicly signalled through a criminal record, publication of the court's reasons may itself serve a community transparency function.
  • The District Court confirmed that genuine remorse is a relevant consideration in sentencing appeals of this kind, and a deficit in remorse may weigh against a favourable outcome, though it was not determinative on the facts here.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 253(b)(ii), 254
- Crimes (Appeal and Review) Act 2001 (NSW), s 20(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 9, 10

Cases: No cases were cited in the judgment.